Where'd the Rule of Law Go?

By William Fisher

Lawyers for the administration of U.S. President Barack Obama told a federal judge yesterday that the government has authority to kill American citizens whom the executive branch has unilaterally determined pose a threat to national security.

That claim came in federal court in Washington, D.C., in response to a lawsuit brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR). The two human rights legal advocacy organizations contend that the administration's so-called “targeted killing authority” violates the Constitution and international law.

CCR attorney Pardiss Kebriae told IPS, "The full contours of the government's position would allow the executive unreviewable authority to target and kill any US citizen it deems a suspect of terrorism anywhere. As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States, a US citizen could not challenge an impending deprivation of his life by his own government."

"The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing," she said.

The ACLU and the CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The lawsuit asks the court to rule that, “outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety.”

Anwar Al-Aulaqi, who was born in Las Cruces, New Mexico, and has dual U.S. and Yemeni citizenship, is a firebrand extremist Imam, who has been accused by government officials and in the press of using his sermons and the Internet to recruit jihadists. He is thought to be in hiding in Yemen.

The lawsuit also asks the court to “order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.”

"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."

The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.

On August 30, 2010, the CCR and the ACLU filed suit on behalf of Dr. Nasser Al-Aulaqi against President Obama, Central Intelligence Agency (CIA) Director Leon Panetta, and Defense Secretary Robert Gates, challenging their decision to authorize the targeted killing of his son, in violation of the Constitution and international law.

Plaintiff’s lawyers argue that, while the government “can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow.”

Under international human rights law, they explain, “lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort. A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.”

They add: “Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted – without oversight, due process or disclosed standards for being placed on the kill list – also poses the risk that the government will erroneously target the wrong people. Since 9/11, the U.S. government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.”

The DOJ declined to comment on the case.

This case is one of two related lawsuits brought by the ACLU and the CCR.
The second is against the U.S. Treasury Department (DOT) and its Office of Foreign Assets Control (OFAC) challenging the legality and constitutionality of the scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.

On July 16, 2010, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC.

The CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Al-Aulaqi’s death, the two groups brought suit challenging the legality and constitutionality of the licensing scheme as applied to the representation they seek to provide. CCR and the ACLU have not had contact with Anwar Al-Aulaqi.

The OFAC requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of an individual designated as a terrorist. A lawyer who provides legal representation for the benefit of such a person without getting special permission is subject to criminal and civil penalties.

In their lawsuit, CCR and the ACLU charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers. The lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government’s consent.

The OFAC case is currently pending in the U.S. District Court for the District of Columbia.